In 1922, A.M. Gibson, predecessor in title to the appellants, conveyed a ten-acre tract of land to Ferman Bartley, predecessor in title to the appellees. The granting clause of the deed contained this exception:
"coal and minerals excepted which is sold."
As a matter of fact there had been no effective conveyance of the mineral rights prior to the date of this deed. The lower court held that the words "which is sold" were restrictive and since no mineral rights previously had been sold the minerals passed to Bartley and to the appellees as his successors in title. The appellants maintain that the words were merely descriptive and that the exception clause was effective to except all of the mineral rights, which thereafter passed to the appellants through mesne conveyances.
The following cases are of significance on the question: Bolen v. Casebolt, 252 Ky. 17, 66 S.W.2d 19; Powell v. Owens, 290 Ky. 108, 160 S.W.2d 383; Hale v. Hale, 297 Ky. 631, 180 S.W.2d 857; Clements v. Morgan, 307 Ky. 496, 211 S.W.2d 164; Gibson v. Sellars, Ky., 252 S.W.2d 911, 37 A.L.R.2d 1435; and Hosbach v. Head, Ky., 284 S.W.2d 684. Trouble arises because these cases are not completely reconcilable.
The cases are consistent on at least one point, namely, that an exception is not limited or made ineffective by the mere fact that a recitation of a previous sale or conveyance of the thing excepted is erroneous. So the fact that the coal and minerals had not been sold at the time of the Gibson-Bartley deed would not of itself prevent the exception from being effective.
In Bolen v. Casebolt the language of the exception was, "the mineral and timber and oil heretofore sold is excepted." [252 Ky. 17, 66 S.W.2d 19.] Actually there had been no previous sale. The court held that the qualifying words in the exception clause were merely descriptive and that there was an effective exception of all the mineral, timber and oil.
In Hale v. Hale the granting clause recited that "the coal and hard minerals * * * have been heretofore sold and conveyed and are not embraced in this conveyance." [297 Ky. 631, 180 S.W.2d 858.] The habendum clause read, "to have and to hold said * * * land with the exception of the coal and hard minerals * * * that have heretofore been sold * * *." The court held that the exception was not restricted to such of the coal rights as had in fact been theretofore sold.
In Gibson v. Sellars the exception clause was: "It is expressly understood * * * that the coal and mineral rights * * * have been heretofore sold * * * and are expressly excluded." [252 S.W.2d 911.] In fact only the coal rights had previously been sold. It was held that the words referring to previous sale were merely descriptive and that the oil and gas rights, which had not previously been sold, were excepted the same as the coal rights that had been sold.
In Hosbach v. Head the granting clause recited that "the coal rights * * * is not conveyed * * * as same was sold by R.L. Head to Henry Walker as of record in Deed Book 61, page 539." The habendum clause contained a covenant of warranty "except as to the coal and mineral rights which do not pass under this conveyance." The court held that the habendum clause must be read with the granting clause and when so read the meaning was clear that the only mineral rights excepted were the coal rights conveyed by the prior deed referred to; and that by making reference to a specific prior conveyance the exception was made restrictive.
The latter four cases are consistent. The inconsistency arises in connection with Powell v. Owens and Clements v. Morgan.
In the Powell case there were two deeds. One excepted "the coal and minerals, mining rights and privileges which have heretofore been sold (our emphasis)." The second deed excepted "the coal and minerals, mining rights and privileges heretofore sold and conveyed." The court seemed to attach no significance to the difference in wording in the deeds, and held that the references to previous sale in both deeds were restrictive, so that nothing was excepted but such coal rights as had previously been sold. It will be observed that the language of the second deed is almost identical with that of the deed involved in Bolen v. Casebolt, so the two cases are wholly irreconcilable.
In Clements v. Morgan the language was, "and the coal and mineral privilege is hereby reserved having heretofore been sold." [307 Ky. 496, 211 S.W.2d 164.] Actually, only the coal rights had previously been sold, and the court held that the deed was not effective to except the oil and gas rights. This was on the basis that the reference to previous sale was restrictive. In Gibson v. Sellars the court said with reference to the Clements case that "the conclusion there reached would not have been the same had the case been before this court as presently constituted."
To say, as was done in the Clements case, that the words "having heretofore been sold" are words of restriction is to flout the ordinary meaning of language. The words simply add a descriptive fact about the mineral rights and in no sense are capable of the meaning that only so much of the ...